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Detention Litigation

IDP provides expert advice and support on detention-related litigation to ensure that all immigrants receive due process in matters of detention. IDP’s ongoing work includes support for habeas corpus petitions and other detention-related federal litigation, bond litigation before immigration courts, and related parole negotiations with administrative agencies.

Issues on which IDP has provided briefing and litigation support include, but are not limited to, prolonged mandatory detention based on previous criminal convictions or classification as an arriving alien, detention pending a final order of removal where actual removal is not reasonably foreseeable, procedures at administrative custody hearings or reviews that are unconstitutional or unauthorized by statute, detention of immigrants whose cases are administratively closed, and mandatory detention initiated at times other than when released from criminal incarceration.

IDP also offers amicus support and briefing on detention-related issues before appellate courts.

Attorneys and pro se litigants are encouraged to contact Anthony Enriquez via the form below for consulting, drafting, and technical support for detention-related litigation.

Key U.S. Court of Appeals Detention Cases Supported by IDP as Amicus Curiae

First Circuit

Castaneda v. Souza et al. & Gordon et al. v. Holder et al., 810 F.3d 15 (1st Cir. 2015) (en banc)

In these companion cases, the First Circuit held that for an immigrant to be held in civil immigration detention on the basis of a criminal conviction,  the immigration agency must have taken that person into custody at the time of release from criminal custody. Otherwise, the immigrant is entitled to a bond hearing before an Immigration Judge. IDP and allies filed amicus briefs in support of these petitioners, discussing the legislative history of the mandatory detention laws and presenting the stories of individual immigrants impacted by the government’s detention policies.

Second Circuit

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015)

Mr. Lora, a longtime lawful permanent resident, challenged the government’s authority to detain him without a bond hearing. He challenged the prolonged length of his detention, and also that he was detained due to a criminal conviction that was old and for which he received no sentence of incarceration. IDP and allies filed an amicus brief in support of Mr. Lora presenting the stories of other immigrants impacted by the government’s detention policies. The Second Circuit ruled in Mr. Lora’s favor by establishing a bright-line rule that any immigrant detained on the basis of a criminal conviction must be given a bond hearing within six months of the start of detention. The Court ruled that at the bond hearing the government bears the burden of proving the individual presents a risk of flight or danger to the community. Additionally, the Court arguably rejected Mr. Lora’s arguments based on “released” and “when released” theories.

Third Circuit

Sylvain v. Atty Gen, 714 F.3d 150 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended. IDP and allies filed an amicus brief in support of the immigrant’s petition for rehearing en banc.

Desrosiers v. Hendricks, 532 Fed.Appx. 283 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Fourth Circuit

Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Ninth Circuit

Khoury et al. v. Asher et al., No. 14-35482 (pending)

In this case, immigrants are challenging the applicability of the mandatory detention statute 1) where there is no regard for the length of time that has passed since criminal custody ended, 2) where there was never any criminal sentence to incarceration, and 3) where detention has become unconstitutionally prolonged. IDP and allies filed an amicus brief in support of these petitioners presenting the stories of individual immigrants impacted by the government’s detention policies.

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